Graden v. City of Parkville

• Decision Date: 06 November 1905
• Citation: 90 S.W. 115,114 Mo. App. 527
• Parties: GRADEN v. CITY OF PARKVILLE et al.
• Court: Missouri Court of Appeals

90 S.W. 115

114 Mo. App. 527

GRADEN v. CITY OF PARKVILLE et al.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. MUNICIPAL CORPORATIONS — STREETS—IMPROVEMENT—AUTHORITY—ORDINANCES.

The grading and macadamizing of a city street without an ordinance providing therefor, required by Rev. St. 1899, §§ 5954, 5955, is unauthorized.

2. INJUNCTION—DEFENSES—RELIEF INEFFECTUAL.

Where improvements of a city street were made without an ordinance authorizing the same, but were paid for, they could not thereafter be effected by injunction.

3. MUNICIPAL CORPORATIONS—IMPROVEMENTS —MATERIALS—ABUTTING PROPERTY—DAMAGES.

While a city is entitled to take stone from from one portion of a street to repair other portions thereof, it has no authority by so doing to injure the property of an abutting owner without first compensating her for the damages she will sustain.

4. SAME — GRADING STREETS — RESOLUTION— ORDINANCES.

Under Rev. St. 1899, § 5979, governing cities of the fourth class, and requiring that the grading of city streets shall be authorized by an ordinance of the city council, a resolution of a city of that class contemplating the grading of certain streets is insufficient to authorize the work.

5. SAME—DAMAGES.

Where the grading of a city street had the effect of damaging the property of an abutting owner, she was entitled to compensation for the injury sustained, to be ascertained by a jury or a board of commissioners before the beginning of the improvement, as required by Const. art. 2, § 21.

6. SAME—REMEDIES—INJUNCTION.

Under Const. art. 2, § 21, entitling an abutting owner to compensation for damages to her property by the grading of a street before the beginning of the improvement, where the work was begun without authority by the city street commissioner, and without ascertaining the compensation to which an abutting owner was entitled, she had no adequate remedy at law, but was entitled to an injunction to restrain the further prosecution of the work.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Suit by Martha Graden against the city of Parkville and another. From a decree dismissing the bill, plaintiff appeals. Reversed.

George W. Day and A. D. Gresham, for appellant. James Brown and Anderson & Carmack, for respondents.

BROADDUS, P. J.

The plaintiff is the owner, in the defendant city, upon which she, with her family, has been residing for more than 15 years, of certain real estate fronting on Eighth and Main streets. Main street runs from near the Missouri river, laterally, upon a hill upon which the town is located. Eighth street runs east and west and against the bill. About the time plaintiff became the owner of said property the said Main street, in front of plaintiff's property, was graded so as to leave two roadways, one known as the "upper" and the other the "lower" roadway; the latter being about 10 feet lower than the former. The principal travel was on the upper way, the surface of which was a ledge of stone. Prior to this controversy the city by ordinance provided for the laying of a sidewalk on Main street from the river to and beyond its intersection with Eighth street, and in so doing had made a cut across the latter street, which left both streets at that point a short distance above the sidewalk as laid. On July 6, 1904, the board of aldermen of defendant city, by resolution, ordered the street commissioner, the defendant Breen, "to put Main street, from First to Third street, in good condition and repair, and macadamize and properly shape up the street its entire width from First to Third street, and to grade and complete said street for a width of 40 feet between Second and Third streets," etc. On September 13, 1904, the aldermen passed the following resolution: "On motion of Alderman Jackson, the street...